92 Decision Citation: BVA 92-26412
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-08 547 ) DATE
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THE ISSUE
Whether new and material evidence has been submitted to
reopen a claim of entitlement to service connection for
hearing loss.
ATTORNEY FOR THE BOARD
Nancy Phillips, Counsel
INTRODUCTION
The appellant had recognized service from December 1942 to
August 1945.
Service connection for hearing loss was denied by decision
of the Board of Veterans' Appeals in April 1978. The
current matter came before the Board on appeal from an
adjudicative determination of the Regional Office in Manila,
the Philippines. The notice of disagreement was received in
December 1991. The statement of the case was issued in
March 1992. The substantive appeal was received in March
1992. The case was received at the Board and docketed in
June 1992.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant essentially argues that there has been
submitted new evidence in the form of his contention that he
developed hearing loss in 1943, not in 1947, as he had
originally, and mistakenly, claimed.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. 7104 (West
1991), following review and consideration of all evidence
and material of record in the claims file, and for the
following reasons and bases, it is the decision of the Board
that the claim for service connection for hearing loss is
not reopened.
FINDINGS OF FACT
1. All evidence necessary for an equitable disposition of
the issue on appeal has been obtained by the regional office.
2. The Board of Veterans' Appeals denied entitlement to
service connection for hearing loss in April 1978.
3. Additional evidence submitted since the Board's decision
of April 1978 is either cumulative to, or duplicative of,
evidence previously considered by the Board.
CONCLUSIONS OF LAW
1. Evidence received since the Board of Veterans' Appeals
denied entitlement to service connection for hearing loss in
April 1978 is not new and material and the appellant's claim
for that benefit is not reopened. 38 U.S.C.A. 5107, 5108
(West 1991).
2. The decision of the Board of Veterans' Appeals in April
1978 which denied the appellant's claim of entitlement to
service connection for hearing loss is final. 38 U.S.C.A.
7104 (West 1991).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Decisions of the Board of Veterans' Appeals are final.
38 U.S.C.A. 7103(a). Once the Board of Veterans' Appeals
disallows a claim, the claim may not be reopened or allowed
unless new and material evidence is presented or secured.
38 U.S.C.A. 5108, 7104(b). According to Colvin v.
Derwinski, 1 Vet.App. 171 (1991), evidence is new and not
merely cumulative of other evidence on the record, and is
material when not only relevant and probative of the issue
at hand, but also when it presents a reasonable possibility,
when viewed in the context of all the evidence, both old and
new, that it would change the outcome.
In this case, evidence considered by the Board in the 1978
decision included an objective record which did not reflect
hearing loss prior to 1977, many years after service.
Objective evidence which has been added to the record is
simply cumulative to that previously considered because it
also shows the presence of hearing loss in the late 1970's.
Evidence previously considered by the Board also included
the appellant's argument that he had incurred hearing loss
in 1943, and not in 1947, as he had at one time indicated.
Thus, the appellant's current arguments to this effect are
essentially duplicative of arguments which were considered
by the Board in 1978. Inasmuch as the additional evidence
is either duplicative of, or cumulative to, evidence
previously considered, we conclude that the additional
evidence is not new. This being the case, one of the
elements necessary to reopen the claim is not present.
ORDER
New and material evidence not having been submitted to
reopen a claim of entitlement to service connection for
hearing loss, the benefit sought on appeal is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
*
(Member Temporarily Absent) H. STERLING M.D.
HOLLY E. MOEHLMANN
*38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
(CONTINUED ON NEXT PAGE)
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on
appeal is appealable to the United States Court of Veterans
Appeals within 120 days from the date of mailing of notice
of the decision, provided that a Notice of Disagreement
concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after
November 18, 1988. Veterans' Judicial Review Act, Pub. L.
No. 100-687, § 402 (1988). The date which appears on the
face of this decision constitutes the date of mailing and
the copy of this decision which you have received is your
notice of the action taken on your appeal by the Board of
Veterans' Appeals.